GULICK V. GULICK and GREEN. nership it ought however to have made further averment that this new house made a legal assumption to pay the debts owing by that other and different firm, and even then it would have been insufficient; for if the partners were really indebted to James Gulick, he could not set it off against a separate demand of one of the partners; so that under every view of the plea, it is utterly defective, and judgment must be rendered for the plaintiff. RYERSON, J. I have been unable to perceive any principle on which, the plea in this case, can be supported. It is true, in the brief submitted to us, a succession of propositions are suggested, with numerous authorities cited in their support. But I must confess my inability to discover any influence which those propositions, any or all of them, can, or ought to have, on the judgment which this Court should render. They all seem to result in this, that when a creditor of a Firm, with due notice, accepts the separate undertaking of only a part of that firm, on, or after the retirement from its business, of the other part, with a contract of indemnity from its debts; the retiring partner, is thereby discharged. Admitting the truth of this proposition, in its greatest latitude, it cannot relieve the defendant who bas pleaded. He does not show in any part of his plea, that the plaintiff has done any thing to change the relation between him and the defendants, or either of them. He has given no discharge express or implied,of either. He has accepted of no new security, no new promise, or liability. The defendants were originally, jointly liable to him. Nothing has occurred to enable him to pursue a remedy on this joint liability, against one of them alone. And he has received no new security, no new promise, on which he may recover against one alone. If the defendant pleading this plea, has any defence, it is in equity, and not at law. If the plaintiff have come into the possession of any funds, which ought to be appropriated to satisfy this claim, that fact can only be properly manifested and applied, in whole or in part, in another tribunal. The demurrer is therefore well taken, and the plaintiff must have judgment. HORNBLOWER, C. J. concurred in the opinions of both Justices. Judgment for plaintiff. FERGUSON v REEVE. On Certiorari, in suit for unlawful detainer. The mere charge of collusion between the defendant and the prior tenant does not legalize proof that the tenant acknowledged that his tenancy expired on a certain day. This was a Certiorari brought to remove the proceedings under our statute, on a complaint for an unlawful detainer, in which, judgment was rendered for the plaintiff. A. Whitehead for the plaintiff in Certiorari moved for reversalbecause the Justice admitted unlawful evidence-that of a third person's confession, the former tenant of the premises, Saunders contra-contended that the evidence was legal, the defendant below claiming under the said tenant whose confession was proved;-2 D & E. 53-4 Johns. R. 234. The Chief Justice delivered the opinion of the Court. HORNBLOWER, C. J. The complaint in this cause, sets out, that the defendant below, having obtained possession of the premises in question, under or by collusion, with one Timothy C. Conner, a former tenant of the premises, wilfully and without force, holds over, &c. On the trial, the plaintiff below, offered to prove that the said Timothy C, Conner, the former tenant named in the complaint, had told the witness, that his tenancy in the premises,expired on the first day of April, 1836. To this evidence the defendant objected, but the Justice overruled the objection, and admitted the evidence, giving as a reason therefor, as stated upon his record, 66 that the said Conner was charged in the plaintiff's complaint of collusion with the defendant.' In doing so, the Justice clearly committed an error, If the collusion of Conner, with the defendant, would have legalized evidence of what Conner had said, that collusion ought first to have been proved: instead of that the Justice admitted the evidence simply, because the plaintiff had charged him with collusion; which for all that appears, may be a libel upon his character. But it is unnecessary to say, that a plaintiff cannot make the conversations or declarations of third persons, evidence against his adversary, by simply charging FERGUSON V. REEVE. such third persons, with fraud or collusion. Such a rule would be as dangerous and destructive, to all security of property and character as it would be unreasonable. A party either plaintiff or defendant, could always make evidence for himself, by impeaching the characters and conduct of those, whose out door conversations might be favorable to his interests. But suppose the imputation was just, and that Conner had collusively put the defendant in possession; would that justify or legalize the evidence? I apprehend not. The collusive manner in which the defendant got the possession, may be proved, and so far as that sustains the plaintiff's case, it is all right; but then, the mere fact, that the defendant acquired the possession by collusion with Conner, will not make his declarations evidence, unless they were made in the presence of the defendant, or unless they were made at the time of, and were a part of the collusive transaction. If the defendant derived his possession from Conner and professed to hold under him, then indeed it would be competent for the plaintiff to shew, what Conner had said, as to his own rights, while he was in possession, and before the defendant entered: and this is the whole extent, to which the cases go, that were cited by the plaintiff's counsel. Waring v Warren, 1 Johns. R. S40, $41. Walker Broadstock, 1 Esp. N. P. Cas. 458; Davies v Pierce, 2 D. & E. 53; Doe v Williams, Cowp. 621, Jackson v Bard, 4 Johns. R. 230, 234. Let the Judgment be reversed. FORD and RYERSON, Justices, concurred. Judgment Reversed. LUM v. PRICE. On Certiorari to Common Pleas in matter of appeal. An appellant who was defendant in the small cause Court, must, be in the appellate Court and move the hearing of his appeal at the proper time, or it should be dismissed. The appellee is not bound to proceed exparte and try his cause. J. J. Chetwood, and S. Scudder for plaintiff. Opinion of the Court, delivered by HORNBLOWER, C J. Lum, the plaintiff in Certiorari, was defendant in the action before the Justice. Judgment was given against him, and he appealed to the Common Pleas of Essex.— The appeal was regularly filed, entered, and the hearing thereof ordered on; when the Court dismissed the appeal, as they say, in their return, because "the appellant failed to prosecute his appeal." This is complained of as irregular; and it is insisted, that an appeal regularly taken and prosecuted until it is ready for a hearing, is in effect, an opening, or setting aside of the Judgment below: or at least such a vacation of it, that it can never be re-instated, but by the Judgment of the Common Pleas, upon the merits of the case. That both parties upon an appeal are actors; if the appellant was plaintiff below, he must not only prosecute his appeal with regularity, until it is ready to be heard; but when the hearing is ordered on, he must proceed and prove his case, or be non-suited. But that when the appellant is the defendant below, he has only to see that his appeal is regularly brought and entered for trial; that when that is done, he has done all that is incumbent on him, he may retire or fold his arms in security, until the appellee, who was plaintiff below, proceeds and supports his claim-that if the plaintiff neglects to do so, the Court should non-suit him, instead of dismissing the appeal. It might be sufficient, to say, that it appears by the record in this case, that the Court of Common Pleas, dismissed the appeal, because the appellant "failed to prosecute his appeal." How, or in what particular he failed, does not appear. Nor is it necessary that it should appear on the record. We must intend, that he was in default, unless the contrary is shown. We cannot pre 16 196 57e 318 BALLANTINE and MARSH V. HAIGHT. sume that he failed, by not being present in Court, or in any other particular way. But not to decide the case upon this point; I remark, that the arguments of the plaintiff's counsel, are based on false principles. The regular prosecution of an appeal, does not set aside or vacate in any way, the judgment below-that, remains until a new judgment is rendered, or the plaintiff non-suited in the Court of appeals. The condition of the Appeal Bond is, that the appellant shall "appear and prosecute, &c." If therefore the appellant in this case, however regularly he may have brought and conducted his appeal, up to that time, did not by himself or counsel, appear in Court to prosecute it, when the Court reached it upon the list, and ordered the hearing to come on, the appellee was not bound, nor would the Court permit him to go into an exparte hearing and trial. The unexcused absence of the appellant was an abandonment of his appeal; he had ceased to prosecute it; and all the court could do, was to dismiss the appeal, and leave the plaintiff below, in possession of his judgment. This view of the case is fully sustained by what was said by this Court in Reed v. Rocap, 4 Halst. R. 347-350. The judg ment must therefore be affirmed. FORD and RYERSON, Justices, concurred. Judgment Affirmed. BALLANTINE and MARSH v. HAIGHT. In case on demurrer. The law of the State of New York, called the two thirds act, discharging |